555
CHAPTER 45
TEXAS
A. Scope of the Statute and Elements of a Cause of Action
The Texas Deceptive Trade Practices-Consumer Protection Act
(DTPA)1 prohibits “false, misleading, or deceptive acts or practices in the
conduct of trade or commerce.”2
The term “false, misleading, or deceptive acts or practices” includes,
but is not limited to, the acts enumerated in section 17.46(b) of the Texas
Business and Commerce Code, commonly referred to as the “laundry list.”
The Texas Attorney General’s Consumer Protection Division may state a
claim under the “general prohibition” in section 17.46(a) or the laundry
list in section 17.46(b). In construing the “general prohibition” of section
17.46(a) in a section 17.47(a) suit brought by the Texas Attorney General,
the DTPA provides that to the extent possible the courts are to be guided
by the section 17.46(b) “laundry list” and the interpretations of Federal
Trade Commission Act section 5(a)(1)3 by the Federal Trade Commission
(FTC) and federal courts.4 However, a violation of an FTC rule does not,
of itself, constitute a violation of the DTPA.5
Private litigants must base their claim on one or more of the
specifically enumerated provisions in the laundry list, a breach of a
warranty, a violation of Chapter 541 of the Texas Insurance Code, or a
violation of one of the “tie-in” statutes that allows a private right of action.6
For purposes of the DTPA, the terms “trade” and “commerce” mean
“the advertising, offering for sale, sale, lease, or distribution of any good
or service, of any property, tangible or intangible, real, personal or mixed,
and any other article, commodity, or thing of value, wherever situated, and
shall include any trade or commerce directly or indirectly affecting the
people” of Texas.7 The DTPA’s underlying purpose is “to protect
consumers against false, misleading, and deceptive business practices,
unconscionable actions, and breaches of warranty.”8
1. TEX. BUS. & COM. CODE §§ 17.41 through 17.63.
2. Id. § 17.46(a).
3. 15 U.S.C. § 45(a)(1).
4. TEX. BUS. & COM. CODE § 17.46(c).
5. Yumilicious Franchise, L.L.C. v. Barrie, 819 F.3d 170, 176 (5th Cir. 2016).
6. TEX. BUS. & COM. CODE § 17.50(h).
7. Id. § 17.45(6).
8. Id. § 17.44.
556 State Consumer Protection Law
In general, the DTPA applies to business consumers and commercial
transactions, as well as to typical consumer transactions.9 However, the
DTPA does not apply to a business consumer that has assets of $25 million
or more, or that is owned or controlled by a corporation or entity with
assets of $25 million or more.10
“Generally, an act is false, misleading, or deceptive if it has the
capacity to deceive an ignorant, unthinking, or credulous person.”11
Scienter is not a necessary element of a cause of action for a laundry list
violation based on either the defendant’s affirmative representation
(except when the laundry list provision includes intent as an element) or
for a cause of action based on unconscionability.12
For a failure to disclose material information to be actionable under
the DTPA, generally the defendant must have known the information and
failed to bring it to the plaintiff’s attention.13 A defendant has no duty
under the DTPA to disclose material facts that it should have known but
did not.14 However, when a seller makes an affirmative representation, the
law imposes a duty to know whether the statement is true.15
The DTPA exempts claims for damages based on the rendering of a
professional service, the essence of which is providing advice, judgment,
opinion, or similar professional skill.16 This exemption does not apply to
express misrepresentations of material fact that cannot be characterized as
advice, judgment, or opinion or to failure to disclose information known
9. Id. § 17.45(4).
10. Id.
(“Unconscionability under the DTPA is an objective standard for which
scienter is irrelevant.”); Pennington v. Singleton, 606 S.W.2d 682, 689
(Tex. 1980); Smith v. Herco, Inc., 900 S.W.2d 852, 859 (Tex . Ct. App.
1995) (“Intent to misrepresent, or knowledge that a representation is
untrue, has never been an element of a DTPA ‘laundry list’ claim unless
the specific provision requires intent.”).
13. Boys Clubs of Greater Dallas, 907 S.W.2d at 479.
Prudential Ins. Co. v. Jefferson Assocs., 896 S.W.2d 156, 162 (Tex. 1995);
Washburn v. Ford, 521 S.W.3d 871, 876 (Tex. Ct. App. 2017).
15. Yumilicious, 819 F.3d at 175; Prudential Ins. Co., 896 S.W.2d at 162; First
521 S.W.3d at 876; Wyly v. Integrity Ins. Sols., 502 S.W.3d 901, 909 (Tex.
Ct. App. 2016).
16. TEX. BUS. & COM. CODE § 17.49(c).
